Federalism Is Fundamental

The history of federalism as a paradigm of political order is literally ancient, stretching all the way back to the Greek alliances among City-States, and arguably even further. It reached a new level of sophistication in the 1400s and onward, as the European powers of the late Middle Ages and Early Renaissance began to employ it to stabilize the volatile feudal order that had dominated Europe after the fall of Rome.

Federalism developed out of the need to find a way to survive without being either subsumed under the imperial regime of a powerful enemy or, alternatively, destroyed by the violent chaos of perpetually-warring nation-states of roughly equal strength. Many smaller or weaker Principalities and Kingdoms, desiring to maintain their sovereignty and autonomy while yet avoiding senseless, destructive and costly wars between themselves (or conquest by and subjugation to larger, more powerful neighbors) banded together in “foederal” alliances, formalized by contractual charters and compacts, to secure peace and diplomatic deference among themselves and to strengthen their collective resistance to external threats.

These had a mixed history of success, and in their details took on many different forms, but all were essentially the same in concept, and over time their chief result was a dual political doctrine that emerged from that era under the moniker of the “Balance of Power ” and “the Law of Nations .”

This entire philosophy carried over into our own founding, and was key to understanding the original intent of the framers of the Constitution.

“At the root of the federal principle, as then conceived, was the idea of a covenant or ‘foedus’ (its etymological root). This and ‘synonymous ideas of promise, commitment, vowing… ones word’… were joined together with two other things: ‘the idea of cooperation, reciprocity, mutuality,’ and ‘the need for some measure of predictability, expectation, constancy, and reliability in human relations.’”
[Excerpted from “ Peace Pact ,” by David C. Hendrickson].

Specifically, in our own case, this principle took the form of a limited federal government, rather than a national or centralized government, and the heretofore free and sovereign states (nations by their own declaration in 1776, and by right of victory in the Revolutionary War), expected under this Charter to maintain the preponderance of their sovereignty as free and independent political bodies.

One appropriate term to describe this relationship between the states and the federal government they were forming is as one of “ divided sovereignty ,” wherein the rule of law governs all aspects of political life, with the Constitution as the Supreme law, and the delegation of authorities, responsibilities, powers and jurisdictions set forth therein, divided among the federal, state, & local levels of government, all ultimately deriving its justification and legitimacy from the prime sovereignty of free and consenting individuals.

“The federal government created by the Constitution, however, fell short of a ‘full-fledged state,’ or what was called at the time a ‘consolidated’ government. Unlike the state governments, which generally claimed a plenary authority over the lives and liberties of their citizens, the federal government was one of enumerated and limited powers. Supremacy was accorded neither to the federal government nor to the state governments but to the Constitution itself…”
[ ibid ].

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In our instance, the motives were much the same as in the instance of the federal republics of the late-Middle Ages. The framers – “Unionists,” as they may be appropriately called – sought a middle course between ‘Scylla and Charybdis’: anarchy and inter-state or inter-sectional strife on the one hand, and on the other, the perils of Empire and consolidated national government. Both, they argued, were very real dangers, and to be avoided if at all possible.

But it’s necessary to note, lastly, that the Constitution, as ratified and understood in its time, was not intended to govern the affairs of the states, except insofar as specific provisions of it refer explicitly to the states. In particular, the Bill of Rights was never intended to apply to the states, and any constitutional interpretation which has it doing so, is demonstrably mistaken. That was one of the fundamental features of the compact, a feature which was deliberately included in order to maintain state sovereignty in all areas where the Constitution did not delegate federal authority. This was a built-in property of the entire document, and the 10th amendment was simply a reiteration of that fundamental principle.